AB438: Bill Text

AB438,13,9 109.11 (1m) Late payment penalties. (a) If an employer fails to pay any wages due an employe, on demand, within the time period specified in s. 109.03 (2), (2g), (3), (4) or (4g), whichever is applicable, the department or a circuit court, subject to par. (c), may order the employer to pay to the employe, in addition to the amount of wages due and unpaid and in addition to or in lieu of any increased wages specified in sub. (1) (b) or (2) (a) or (b) or criminal penalties specified in sub. (3), increased wages in the amount of the employe's average daily earnings for each day for which the employer is late in paying those wages or in compromising and settling the wage claim to the satisfaction of the employe.

AB438,13,19 (b) If an employer fails to pay any wages due a commission salesperson, on demand, within the time period specified in s. 109.03 (2m) (3), (4) or (4g), whichever is applicable, the department or a circuit court, subject to par. (c), may order the employer to pay to the commission salesperson, in addition to the amount of wages due and unpaid and in addition to or in lieu of any increased wages specified in sub. (1) (b) or (2) (a) or (b) or criminal penalties specified in sub. (3), increased wages in the amount of one-fifteenth of the commission salesperson's commissions earned through the last day of employment that remain unpaid for each day for which the employer is late in paying those wages or in compromising and setting the wage claim to the satisfaction of the commission salesperson.

AB438,14,2 (c) Notwithstanding pars. (a) and (b), if an employer disputes the amount of a wage claim under s. 109.03 (2), (2g), (2m), (3), (4) or (4g) made by an employe or commission salesperson and pays to the employe or commission salesperson the amount that the employer in good faith reasonably believes is due within the time period specified in s. 109.03 (2), (2g), (2m), (3), (4), (4g), whichever is applicable, the penalties provided in pars. (a) and (b) do not apply, unless the department or a court later determines that the amount actually owed to the employe or commission salesperson is greater than the amount paid by the employer.

AB438, s. 19 Section 19. 109.11 (2) (a) of the statutes is amended to read:

AB438,14,11 109.11 (2) (a) In a wage claim action that is commenced by an employe or commission salesperson before the department has completed its investigation under s. 109.09 (1) and its attempts to compromise and settle the wage claim under sub. (1), a circuit court may order the employer to pay to the employe or commission salesperson, in addition to the amount of wages due and unpaid and in addition to or in lieu of the late payment penalties specified in sub. (1m) and the criminal penalties specified in sub. (3), increased wages of not more than 50% of the amount of wages due and unpaid.

AB438, s. 20 Section 20. 109.11 (2) (b) of the statutes is amended to read:

AB438,14,20 109.11 (2) (b) In a wage claim action that is commenced after the department has completed its investigation under s. 109.09 (1) and its attempts to settle and compromise the wage claim under sub. (1), a circuit court may order the employer to pay to the employe or commission salesperson, in addition to the amount of wages due and unpaid to an employe or commission salesperson and in addition to or in lieu of the late payment penalties specified in sub. (1m) and the criminal penalties specified in sub. (3), increased wages of not more than 100% of the amount of those wages due and unpaid.

AB438, s. 21 Section 21. 109.11 (3) of the statutes is amended to read:

AB438,15,5 109.11 (3) Criminal penalties. Any employer who, having the ability to pay, fails to pay the wages due and payable as provided in this chapter or falsely denies the amount or validity thereof of those wages or that such those wages are due, with intent to secure any discount upon such that indebtedness or with intent to annoy, harass, oppress, hinder or defraud the person to whom such those wages are due, may be fined not more than $500 or imprisoned not more than 90 days or both. Each failure or refusal to pay each employe or commission salesperson the amount of wages due at the time, or under the conditions required in this chapter, constitutes a separate offense.

AB438, s. 22 Section 22. Chapter 135 (title) of the statutes is amended to read:

AB438,15,9 CHAPTER 135 dealership and sales representation practices

AB438, s. 23 Section 23. Subchapter I (title) of chapter 135 [precedes 135.01] of the statutes is created to read:

AB438,15,12 CHAPTER 135

AB438,15,14 subchapter I dealership practices

AB438, s. 24 Section 24. 135.01 of the statutes is amended to read:

AB438,15,17 135.01 Short title. This chapter subchapter may be cited as the "Wisconsin Fair Dealership Law".

AB438, s. 25 Section 25. 135.02 (intro.) of the statutes is amended to read:

AB438,15,19 135.02 Definitions. (intro.) In this chapter subchapter:

AB438, s. 26 Section 26. 135.025 (1) of the statutes is amended to read:

AB438,15,22 135.025 (1) This chapter subchapter shall be liberally construed and applied to promote its underlying remedial purposes and policies.

AB438, s. 27 Section 27. 135.025 (2) (intro.) of the statutes is amended to read:

AB438,15,25 135.025 (2) (intro.) The underlying purposes and policies of this chapter subchapter are as follows:

AB438, s. 28 Section 28. 135.025 (3) of the statutes is amended to read:

AB438,16,4 135.025 (3) The effect of this chapter subchapter may not be varied by contract or agreement. Any contract or agreement purporting to do so is void and unenforceable to that extent only.

AB438, s. 29 Section 29. 135.05 of the statutes is amended to read:

AB438,16,11 135.05 Application to arbitration agreements. This chapter subchapter shall not apply to provisions for the binding arbitration of disputes contained in a dealership agreement concerning the items covered in s. 135.03, if the criteria for determining whether good cause existed for a termination, cancellation, nonrenewal or substantial change of competitive circumstances, and the relief provided is, are no less than that provided for in this chapter subchapter.

AB438, s. 30 Section 30. 135.06 of the statutes is amended to read:

AB438,16,19 135.06 Action for damages and injunctive relief. If any grantor violates this chapter subchapter, a dealer may bring an action against such that grantor in any court of competent jurisdiction for damages sustained by the dealer as a consequence of the grantor's violation, together with the actual costs of the action, including reasonable actual attorney fees, and the dealer also may be granted injunctive relief against unlawful termination, cancellation, nonrenewal or substantial change of competitive circumstances.

AB438, s. 31 Section 31. 135.065 of the statutes is amended to read:

AB438,16,24 135.065 Temporary injunctions. In any action brought by a dealer against a grantor under this chapter subchapter, any violation of this chapter subchapter by the grantor is deemed considered to be an irreparable injury to the dealer for purposes of determining if a temporary injunction should be issued.

AB438, s. 32 Section 32. 135.07 (intro.) of the statutes is amended to read:

AB438,17,1 135.07 Nonapplicability. (intro.) This chapter subchapter does not apply:

AB438, s. 33 Section 33. Subchapter II of chapter 135 [precedes 135.20] of the statutes is created to read:

AB438,17,4 CHAPTER 135

AB438,17,6 subchapter ii sales representation practices

AB438,17,7 135.20 Definitions. In this subchapter:

AB438,17,18 (1) "Good cause" means a material breach of a written sales representative agreement governing the relationship between a sales representative and a manufacturer, wholesaler or importer or, in the absence of a written sales representative agreement, a failure by a sales representative to comply substantially with any essential and reasonable requirements imposed on the sales representative by a manufacturer, wholesaler or importer, which requirements are not discriminatory as compared with requirements imposed on other similarly situated sales representatives either by their terms or in the manner of their enforcement. "Good cause" also includes the nonpayment of any sums due under the sales representative agreement and any of the circumstances specified in s. 135.23 (1) to (5).

AB438,17,19 (2) "Person" has the meaning given in s. 135.02 (6).

AB438,17,22 (3) "Sales representative" means a person who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission. "Sales representative" does not include any of the following:

AB438,17,23 (a) A person who is an employe of the principal.

AB438,17,25 (b) A person who places orders or purchases goods for the person's own account for resale.

AB438,18,1 (c) A person who holds goods on a consignment basis for resale.

AB438,18,3 (d) A person who distributes, sells or offers goods, other than samples, to end users and not for resale.

AB438,18,4 (e) A person who is an insurance agent or broker.

AB438,18,13 (4) "Sales representative agreement" means a contract or agreement, either express or implied, whether oral or written, for a definite or indefinite period, between a sales representative and another person, by which a sales representative is granted the right to represent, sell or offer for sale the goods of a manufacturer, wholesaler or importer by use of the trade name, trademark, service mark, logotype, advertising or other commercial symbol of the manufacturer, wholesaler or importer, and in which there exists a community of interest between the sales representative and the manufacturer, wholesaler or importer in the marketing of the goods at wholesale, by lease, agreement or otherwise.

AB438,18,14 (5) "Wholesale orders" means orders for goods to be ultimately sold at retail.

AB438,18,17 135.21 Scope; variation by contract. (1) Scope. This subchapter applies to a sales representative to whom, during some part of the period of the sales representative agreement, any of the following applies:

AB438,18,19 (a) The sales representative is a resident of this state or maintains his or her principal place of business in this state.

AB438,18,21 (b) The sales representative's geographical territory, as specified in the sales representative agreement, includes all or part of this state.

AB438,18,24 (2) Variation by contract. The effect of this subchapter may not be varied by contract or agreement. Any contract or agreement purporting to do so is void and unenforceable to that extent only.

AB438,19,6 135.22 Cancellation and alteration of sales representative agreements. No manufacturer, wholesaler or importer, directly or through any officer, agent or employe, may terminate, cancel, fail to renew or substantially change the competitive circumstances of a sales representative agreement without good cause. The burden of proving good cause is on the manufacturer, wholesaler or importer.

AB438,19,21 135.23 Notice of termination or change in sales representative agreement. Except as provided in this section, a manufacturer, wholesaler or importer shall provide a sales representative with at least 90 days' prior written notice of termination, cancellation, nonrenewal or substantial change in competitive circumstances. The notice shall state all the reasons for termination, cancellation, nonrenewal or substantial change in competitive circumstances and shall provide that the sales representative has 60 days after the date of delivery or posting of the notice in which to rectify any claimed deficiency. If the deficiency is rectified within those 60 days the notice shall be void. If the reason for termination, cancellation, nonrenewal or substantial change in competitive circumstances is nonpayment of sums due under the sales representative agreement, the sales representative shall be entitled to written notice of that default, and shall have 10 days after the date of delivery or posting of the notice to remedy that default. The notice provisions of this section shall not apply if the reason for termination, cancellation or nonrenewal is any of the following:

AB438,19,22 (1) The bankruptcy or insolvency of the sales representative.

AB438,19,24 (2) An assignment for the benefit of creditors or similar disposition of the assets of the sales representative's business.

AB438,20,5 (3) The voluntary abandonment by the sales representative of his or her business with no provision made by the sales representative for the resumption of that business by the sales representative or for the continuation of that business by a transferee of the sales representative as determined by a totality of the circumstances.

AB438,20,8 (4) The conviction of the sales representative for any offense the circumstances of which substantially relate to the circumstances of the sales representative's business.

AB438,20,11 (5) Any act by the sales representative that materially impairs the good will associated with the manufacturer's, wholesaler's or importer's trade name, trademark, service mark, logotype, advertising or other commercial symbol.

AB438,20,20 135.24 Rights on termination of agreement. If a manufacturer, wholesaler or importer, directly or through any officer, agent or employe, terminates, cancels or fails to renew a sales representative agreement, the manufacturer, wholesaler or importer shall pay the sales representative for all sales made by the sales representative and approved by the manufacturer, wholesaler or importer on or before the effective date of the termination, cancellation or nonrenewal of the sales representative agreement. The manufacturer, wholesaler or importer shall pay the commissions owed to the sales representative as provided in s. 109.03 (2m), (4) or (4g), whichever is applicable.

AB438,21,2 135.25 Application to arbitration agreements. This subchapter shall not apply to provisions for the binding arbitration of disputes contained in a dealership agreement concerning the items covered in s. 135.23, if the criteria for determining whether good cause existed for a termination, cancellation, nonrenewal or substantial change of competitive circumstances, and the relief provided, are no less than that provided for in this subchapter.

AB438,21,10 135.26 Action for damages and injunctive relief. If any manufacturer, wholesaler or importer violates this subchapter, a sales representative may bring an action against the manufacturer, wholesaler or importer in any court of competent jurisdiction for damages sustained by the sales representative as a consequence of the violation, together with the actual costs of the action, including reasonable actual attorney fees, and the sales representative also may be granted injunctive relief against unlawful termination, cancellation, nonrenewal or substantial change of competitive circumstances.

AB438,21,15 135.27 Temporary injunctions. In any action brought by a sales representative against a manufacturer, wholesaler or importer under this subchapter, any violation of this subchapter by the manufacturer, wholesaler or importer is considered to be an irreparable injury to the sales representative for purposes of determining if a temporary injunction should be issued.

AB438, s. 93 Section 93. Initial applicability.

AB438,21,22 (1) Wage payments, claims and collections. The treatment of sections 109.01 (1), (1m), (1p), (3) and (4), 109.03 (2), (2g), (2m), (3), (4), (4g), (5), (6) and (7), 109.09 (1) and (2) and 109.11 (1) (a), (1m), (2) (a) and (b) and (3) of the statutes first applies to an employe or commission salesperson, as defined in section 109.01 (1m) of the statutes, as created by this act, whose last day of employment is the effective date of this subsection.

AB438,22,3 (2) Sales representative agreements. The treatment of subchapter II of chapter 135 of the statutes first applies to a sales representative agreement, as defined in section 135.20 (4) of the statutes, as created by this act, that is entered into, extended, renewed or modified on the effective date of this subsection. A sales representative agreement is extended or renewed on the effective date of this subsection if any of the following occurs:

AB438,22,7 (a) The period specified in the sales representative agreement has expired or expires, but the relationship governed by the sales representative agreement continues, either for a new specified period or for an indefinite period, on the effective date of this subsection.

AB438,22,11 (b) The sales representative agreement is for an indefinite period and, with the consent or acquiescence of the manufacturer, wholesaler or importer, the sales representative solicits wholesale orders, as defined in section 135.20 (5) of the statutes, as created by this act, on the effective date of this subsection.

AB438,22,12 (End)